North Dakota Attorney General Wayne Stenehjem.

Votes cast for a deceased Bismarck-area state legislative candidate should be counted, and if he's elected it would create a vacancy to be filled, according to Attorney General Wayne Stenehjem.

Stenehjem issued an opinion Tuesday to Secretary of State Al Jaeger, who on Thursday asked the longtime attorney general to weigh in on questions of what would happen if deceased Republican District 8 House nominee David Andahl is elected in November.

Andahl, 55, died Oct. 5 from COVID-19. So close to Election Day and with mail-in voting already underway, the ballots cannot be changed. About one-third of District 8 mail-in voters had already returned their ballots as of Monday.

Stenehjem said votes for Andahl must be counted, citing "the American rule," that votes for a deceased or disqualified candidate represent a choice by voters.

"In the event the deceased candidate receives the majority of the votes, the candidate is elected. However, if the prevailing candidate has died, the candidate is no longer qualified, and a vacancy would exist," Stenehjem concluded. He also cited state law for filling a legislative vacancy.

Stenehjem's opinion says it "governs the actions of public officials until such time as the question presented is decided by the courts."

Upon a sitting legislator's vacancy, his or her district party typically appoints someone to fill the remainder of the term, but voters may petition for a special election after the legislative session.

This appointment process has been done as recently as last week, when District 43 Democrats appointed Grand Forks County Assistant State's Attorney Zac Ista to fill the remaining two years left on former Rep. Matt Eidson's term. Eidson resigned last month, citing mental health struggles after leaving the U.S. Marine Corps in 2015.

Jaeger said Stenehjem's opinion formalizes what the secretary had previously said about the process should Andahl win a House seat.

"This gives clarity to everybody, to the entire process and the voters," Jaeger said.

District 8 covers a swath at the center of the state north and east of Bismarck.

Andahl and Dave Nehring teamed up and won district Republicans' endorsements and voters' nominations in the June primary, defeating longtime incumbent Rep. Jeff Delzer, R-Underwood, who chairs the powerful House Appropriations Committee.

The race saw involvement from Republican Gov. Doug Burgum, who endorsed Andahl and Nehring and gave more than $1.8 million to a political committee that successfully targeted Delzer. Burgum and Delzer have tangled over budget issues.

Democrats Linda Babb, of Bismarck, and Kathrin Volochenko, of Mercer, also are vying for the House seats.

District 8 Republican Chairman Loren DeWitz said the district party will continue to campaign for Andahl and Nehring in hopes of Republican wins.

Volochenko, who is her district party's chairwoman, did not immediately return a phone call regarding the opinion. She declined to comment Monday on whether she believes Andahl to be a qualified candidate after his death.

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